A conflict of interest exists

Nov 28, 2021 Features / Columnists, Peeping Tom

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Kaieteur News – There is a conflict of interest in the instance of the Head of the National Procurement and Tender Administration Board (NPTAB) holding the same position as Head of the Project Cycle Management Division (PCMD). The Ministry of Finance is being barefaced in defending this obscenity.
According to the Ministry of Finance, the PCMD “is responsible for exercising monitoring oversight of implementation of the Public Sector Investment Programme (PSIP) and to report on the PSIP’s performance to the sectoral ministers, permanent secretaries and ultimately (through the Minister of Finance) to Cabinet.”
The NPTAB, on the other hand, “is responsible for awarding contracts, the value of which is above G$15 million. The process involves appointment of three-person independent evaluation committees, whose recommendations are considered by the NPTAB and upon the acceptance of those recommendations, submit the award for Cabinet’s No-Objection.”
It does not require a genius to see the potential for a conflict of interest. If the person heading the NPTAB approves a contract to a contractor and the works have to be evaluated by the PCMD, there is a potential conflict of interest.
A conflict of interest is where two interests are opposed to each other. Once there is an appearance or likelihood of bias or prejudicial interest as a result of the clash of interests, there is a conflict of interest. The actual bias or the tainting of a process by prejudice does not have to actually happen. The mere likelihood or appearance is sufficient.
The litmus test of a conflict of interest was outlined in the historic ‘Pinochet’ case before the House of Lords. Some background is important in understanding the principle.
In 1973, and with the support of the United States, Augusto Pinochet, a Chilean general, toppled the government of Salvador Allende.
This commenced one of the most brutal reigns. Thousands of people were tortured and more than 3,000 disappeared during Pinochet’s bloody rule.
After he retired, some of his victims brought proceedings against him in a Spanish Court. Far away in Chile, the general and former President could not have been worried. No former Head of State had ever been convicted on the basis of the principle of universal jurisdiction, which allowed a person to be convicted in a foreign state for abuses in that person’s home state.
In 1998, Pinochet was on a private visit to England for medical treatment. Amnesty International, a global human rights body, got wind of the visit. Amnesty International had for decades been highlighting and condemning human rights violations in Chile during the rule of Pinochet.
Upon learning of Pinochet’s proposed visit, it immediately sent out a missive to all European governments reminding them of their obligation to arrest Pinochet for violations of the Convention on Torture. Eventually, a Spanish judge issued an arrest warrant for Pinochet.
Pinochet was arrested and held in a London hospital where he was seeking medical attention. He challenged his arrest and was successful in having the initial warrant quashed.
A second warrant was also quashed, but this decision was stayed, allowing for the authorities to challenge the quashing before the House of Lords. Amnesty International joined the case at that stage.
Pinochet’s bid for freedom rested on his claim of immunity as a former Head of State. The House of Lords allowed the appeal against the quashing of the second warrant, which meant that Pinochet was still under arrest and awaiting an extradition hearing to stand trial in Spain.
It was later brought to the attention of Pinochet’s legal team that one of the judges was linked to a charity which had raised funds for Amnesty International, and that the said judge’s wife was also an administrative staff with Amnesty International.
Pinochet therefore appealed the decision of the House of Lords on the grounds that its decision was tainted with bias because of this conflict of interest.
Pinochet, through his legal team, argued that the relationship between the judge and Amnesty International “gave rise to a reasonable apprehension or suspicion of bias”.
The new panel of judges in their decision held that what was being argued was not actual bias, but the appearance of bias. This today has become the litmus test of conflict of interest – not only actual bias but the appearance or mere suspicion of bias. The Lords held that the judge had an ‘interest’, which must lead to his disqualification.
The case in effect turned on the mere appearance of bias which was sufficient to taint the first hearing. There was no need to establish that there was any actual bias. The mere appearance or likelihood of bias was sufficient to establish a conflict of interest. This has become the litmus test for conflict of interest.
The international financial institutions, particularly the World Bank and the Inter-American Development Bank should withhold the disbursements of all loans and grants until such time as the existing conflict of interest is remedied.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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